Mental Health and Sentencing

Cara Feiner

Barrister

Samuel Griffith Chambers

Western Zone Aboriginal Legal Service NSW/ACT Conference, at Rydal, March 2013

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Mental health issues are something that may be taken into account on

sentence. This is so whether the disorder or disability was in existence at the

time of the commission of the offence, or at the time of sentence.1 This paper

outlines ways that mental illness may be relevant to the sentencing process in

a general sense and examines recent cases in which mental health in

sentencing is examined.

In R v Hemsley [2004] NSWCCA 228 (at [33] – [36]) Sperling J detailed four

ways in which mental illness may be relevant on sentence:

First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced…

Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration…

Thirdly, a custodial sentence may weigh more heavily on a mentally ill person…

A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence…

More recently in Director of Public Prosecutions (Cth) v De La Rosa [2010]

NSWCCA 194, the ways in which mental health issues may be taken into

account in the sentencing process were detailed as follows:

Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing… They can be summarised in the following manner:

● Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence…

                                                                                                               1 R v Anderson [1981] VR 155; (1980) 2 A Crim R 379

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● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed… ● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced… ● It may reduce or eliminate the significance of specific deterrence… ● Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.2

These factors provide a general guide to the manner in which mental health

may impact upon the sentencing process.

1. PROSPECTS OF REHABILITATION

When assessing the prospects of rehabilitation of an offender at sentence,

mental health may be an important consideration, even in situations where the

mental disorder has no causal connection to the commission of the offence.3

In R v Engert (1995) 84 A Crim R 67 Gleeson CJ said at 71:

… there may be a case in which there is an absence of connection between

the mental disorder and the commission of the offence for which a person is

being sentenced, but the mental disorder may be very important to

considerations of rehabilitation, or the need for treatment outside the prison

system.

2. OBJECTIVE SERIOUSNESS AND MORAL CULPABILITY The position on the interaction between mental illness and assessing the

                                                                                                               2  Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at 177 per McClellan CJ at CL 3 Benitez v R (2006) 160 A Crim R 166

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objective seriousness of an offence has been the subject of recent judicial

consideration in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. The

current position in the wake of Muldrock v The Queen is uncertain.

In an earlier case of Hammond v R [2008] NSWCCA 138 an issue was

whether the sentencing judge was required to take the offender’s mental

illness into account when determining the objective seriousness of the

offence. There was evidence on sentence regarding the offender’s mental

illness, but none as to the causal relationship between his condition and the

offending.4 It was held that for mental illness to be relevant to an assessment

of the objective seriousness of an offence it must be demonstrated that the

mental illness contributed causally to the offence, the Court is not permitted to

speculate.5 It was said that a lesser sentence should not be an automatic

consequence in circumstances even in situations where a causal relationship

was evidenced.6

Following Muldrock v The Queen, however, it is uncertain to what extent (if

any) a person’s mental condition is relevant to the assessment of objective

circumstances at least in the context of applying standard non-parole period

provisions.

The High Court said in Muldrock v The Queen [2011] HCA 39 at [27] that:

The objective seriousness of an offence is to be assessed without reference

to matters personal to a particular offender or class of offenders. It is to be

determined wholly by reference to the nature of the offending.

It was said in Yang v R [2012] NSWCCA 49 at [28] per RA Hulme J (with

whom R S Hulme J and Macfarlan JA agreed):

… the High Court of Australia in Muldrock v The Queen [2011] HCA 39;

(2011) 85 ALJR 1154 at [27] appears to have rejected the notion propounded

in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [86] that matters

                                                                                                               4 Hammond v R [2008] NSWCCA 138 at [22] – [28] 5 Hammond v R [2008] NSWCCA 138 at [32] – [34] per McCallum J with whom Spigelman CJ and Price J agreed 6 Hammond v R [2008] NSWCCA 138 at [35]

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personal to an offender, including a mental illness, can be said to affect the

objective seriousness of an offence. I have said, "appears to have rejected",

because it has not been universally accepted.

It was not necessary in Yang v R for the Court to determine the point,

however it was noted that it would be a relevant matter if the contention was

that the judge overestimated the seriousness of the offence. In Yang v R the

sentencing judge did not express a particular finding about the relative

seriousness of the offence, in those circumstances it was not open for the

Court to say that a finding was made that was not open on the evidence.7

In MDZ v R [2011] NSWCCA 243 it was said at [67] per Hall J (Tobias AJA

and Johnson J agreeing) (which was cited in Yang v R at [29]):

In my opinion, in light of the High Court’s judgment in Muldrock (above), it is

open to conclude that the mental condition of the applicant at the time of the

offence may bear upon the objective seriousness of the offences: Muldrock

.... Certainly, in the present case, the sentencing judge, on the evidence, was

required to expressly determine the moral culpability of the applicant in

assessing the seriousness of the offences and in determining the appropriate

sentences to be imposed in relation to them. In this case, the evidence

required a finding that the applicant’s moral culpability was reduced by his

mental health issues.

In Ayshow v R [2011] NSWCCA 240 (which was discussed in Yang v R at

[30]) it was said at [39] per Johnson J (with whom Bathurst CJ and James J

agreed):

To the extent that a question arises whether the Applicant’s mental state at

the time of the offence may bear upon objective seriousness … it remains a

relevant factor on sentence in an assessment of moral culpability.

Accordingly, if there is evidence to support a finding that an offender’s moral

culpability is reduced by a relevant mental condition, the offender is entitled

to have it called in aid on sentence.

                                                                                                               7 Yang v R [2012] NSWCCA 49 at [37]

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In terms of approaches at first instance, a number of decisions were

discussed in Yang v R (at [31] – [36]), a number of those examined

specifically the relationship between mental health and an assessment of the

objective seriousness of an offence.

In R v Biddle [2011] NSWSC 1262 it was said at [88] per Garling J:

In making this assessment, and concordant with my understanding of

Muldrock , I will not take into account the facts and circumstances relating to

Mr Biddle's mental health, which I am persuaded amounted, within the

meaning of the legislation, to " a substantial impairment by reason of

abnormality of mind ".

In R v Mohammed Fahda [2012] NSWSC 114 it was said at [38] per Harrison

J:

I accept that the offender suffered from post-traumatic stress disorder that

was caused and evident prior to the commission of the offence and that this

was associated with hyper-vigilance, paranoia, auditory hallucinations,

depression and inverted sleep patterns. I also find that the offender was

substantially impaired by an abnormality of mind arising from an underlying

condition in the form of post-traumatic stress disorder or an anxiety disorder

and a probable psychotic illness. I have taken all of this into account in

mitigation of the objective criminality of the offence.

However it was said later at [50]:

The objective seriousness of the offence is to be determined without

reference to the personal attributes of the offender, but "wholly by reference

to the nature of the offending": Muldrock at [27]. However, such factors

remain particularly relevant to any determination of the appropriate sentence

to be imposed.

In R v Cotterill [2012] NSWSC 89 it was said at [30] per McCallum J:

It nonetheless remains an important aspect of the sentencing task to assess

the objective seriousness of the offence, which may include consideration of

circumstances personal to the offender that are causally connected to the

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commission of the offence. I do not understand the decision of the High Court

in Muldrock to hold otherwise.

Her Honour went on to say, at [45]:

… I have had regard to the fact that the psychiatric and psychological

material before the Court strongly supports the conclusion that, by reason of

his severe behavioural and psychological difficulties, the offender is ill-

equipped psychologically to control his anger and impulsive behaviour…I

think it would be wrong to disregard those considerations altogether in

assessing the seriousness of the offender's conduct. I am satisfied that the

seriousness of the offence is mitigated to some slight degree by the

offender's impaired control due to his several psychiatric disorders. However,

that factor must not be allowed to overwhelm proper consideration of the

ferocity of the attack and the fact that a life was taken.

3. GENERAL DETERRENCE

In Muldrock v The Queen it was said at [53]:

General deterrence should often be given very little weight in the case of an

offender suffering from a mental disorder or abnormality because such an

offender is not an appropriate medium for making an example to others

The authorities are clear that if an offender is suffering from a mental illness,

the principle of general deterrence may not have the same application as for a

person of sound mind.8 Mental illness may render the offender an

inappropriate vehicle for general deterrence.9 It has been held that

punishment of a person not in full control of his or her conduct may form a

poor vehicle for promoting general deterrence.10

                                                                                                               8 R v Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; R v Israil [2002] NSWCCA 255 at [22]; R v Hemsley [2004] NSWCCA 228 at [34]. 9 R v Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; R v Letteri (NSW CCA, 18 March 1992, unreported); R v Israil [2002] NSWCCA 255; R v Pearson [2004] NSWCCA 129 at [42] 10 R v Windle [2012] NSWCCA 222 at [41] per Basten JA (with whom Price J agreed, Campbell J agreeing with differing reasons)

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In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 it

was said at [178] per McClellan CJ at CL (with whom Simpson J and Barr AJ

agreed):

I should stress that the mental health problems of an offender need not

amount to a serious psychiatric illness before they will be relevant to the

sentencing process. The circumstances may indicate that when an offender

has a mental disorder of modest severity it may nevertheless be appropriate

to moderate the need for general or specific deterrence: R v Skura [2004]

VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5].

In Muldrock v The Queen the High Court of Australia (citing Young CJ in R v

Mooney unreported, Victorian Court of Criminal Appeal, 21 June 1978 at 5)

confirmed the way that an offender’s mental condition may be taken into

account in terms of general deterrence at sentence (at [53]):

One purpose of sentencing is to deter others who might be minded to offend

as the offender has done. Young CJ, in a passage that has been frequently

cited, said this:

“General deterrence should often be given very little weight in the

case of an offender suffering from a mental disorder or abnormality

because such an offender is not an appropriate medium for making

an example to others.”

The Court continued at [54]:

The principle is well recognised. It applies in sentencing offenders suffering

from mental illness, and those with an intellectual handicap. A question will

often arise as to the causal relation, if any, between an offender's mental

illness and the commission of the offence. Such a question is less likely to

arise in sentencing a mentally retarded offender because the lack of capacity

to reason, as an ordinary person might, as to the wrongfulness of the conduct

will, in most cases, substantially lessen the offender's moral culpability for the

offence. The retributive effect and denunciatory aspect of a sentence that is

appropriate to a person of ordinary capacity will often be inappropriate to the

situation of a mentally retarded offender and to the needs of the community.

(Footnotes excluded.)

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It has been noted that not all mental conditions categorised and recognised by

the Diagnostic and Statistical Mental Disorders Manual (4th ed, 2000), attract

the sentencing principle that less weight is given to general deterrence. It may

be that particular conditions do not attract the principle.11

In R v Wright (1997) 93 A Crim R 48 the Court held that it is accepted that

general deterrence should often be given very little weight in the case of an

offender suffering from a mental disorder or abnormality. Such an offender is

not an appropriate medium for making an example to others. However, it was

held that in situations where the offender acts with knowledge of what he or

she is doing and the gravity of those actions, the moderation of sentence

need not be great.12

In R v Wright (1997) 93 A Crim R 48 the issue of self-induced mental health

issues was discussed. In that case, by a failure to take medication combined

with drug taking were the relevant issues. It was said that as the offender was

reckless in bringing on psychotic episodes that made him a danger to the

community there would be a reduction or even an eradication of the mitigation

he would otherwise receive in relation to his mental condition.13

In Benitez v R (2006) 160 A Crim R 166 the Court cited R v Wright. Benitez v

R involved an offender who suffered from depression and had pleaded guilty

to two charges of soliciting to murder. It was said (at 175) per Simpson J (with

whom Hunt AJA and Rothman J agreed):

But the influence of the depression must remain in perspective…Here, it must

be accepted that the applicant, although acting out of depression, also acted

with knowledge of what he was doing and of the gravity of his actions. That

gives some guide to the extent to which his depression ought to have been

taken into account in mitigation of sentence. In the circumstances of this

terrible crime, it cannot weigh too heavily.

                                                                                                               11 Regina v Lawrence [2005] NSWCCA 91 at [23] per Spigelman CJ (with whom Grove J and Bell J agreed) 12 R v Wright (1997) 93 A Crim R 48 at 51 per Hunt CJ at CL 13 R v Wright (1997) 93 A Crim R 48 at 51 – 52

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In Taylor v R [2006] NSWCCA 7 the offender drank beer and smoked

marijuana prior to commission of offence. His psychological functioning was

impaired, both prior to and at the time of the accident, as a result of

unexpected and traumatic family events that occurred immediately prior to the

accident. It was said at [30] per McClellan CJ at CL (with whom Howie J and

Latham J agreed):

… having regard to the finding that the applicant, on his own admission, was

aware of the state he was in and the effect upon him of sleep deprivation,

together with the effect of beer and marijuana, but nevertheless elected to

drive, his impaired psychological state could not play a significant part in

determining the ultimate sentence.

In Carrion v R [2007] NSWCCA 174 evidence had been adduced that the

offender had a very low IQ and his intellectual functioning was “at the upper

end of the mildly intellectually handicapped range.”14 It was held that it was

open to the judge to find that the evidence as to the mental capacity of the

offender was of no relevance when considering general deterrence. It was

held that the significance of the offender’s mental incapacity is to be weighed

and evaluated in the light of the particular facts and circumstances of the

individual case.15 It was held that there is no general principle that a low

intellectual capacity requires that less weight be given to considerations of

general deterrence.16 It was held that it was open to the sentencing judge to

afford no moderation in the consideration of general deterrence.17

                                                                                                               14Carrion v R [2007] NSWCCA 174 at [11] per Hislop J (with whom McClellan CJ at CL agreed) 15 Carrion v R [2007] NSWCCA 174 at [13], citing R v Bus (NSWCCA unreported 3 November 1995) [Hunt CJ, Grove and Allen JJ]. 16 Carrion v R [2007] NSWCCA 174 at [13], R v Elchami (NSWCCA unreported 15 December 1995) [Hunt CJ, Allen and Dunford JJ]. 17 Carrion v R [2007] NSWCCA 174 at [15]

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Relevance of Lengthy Criminal History

[See also ‘Protection of the Community’]

R v Bugmy [2012] NSWCCA 223 was a Crown appeal in which it was argued

that too much weight was given by sentencing judge to the offender’s

subjective case. It was held that it was erroneous for the sentencing judge to

assume that because there was a diagnosis of mental illness this

automatically had the effect that the offender was to some extent an

inappropriate vehicle for general deterrence.18

The offender had been convicted of more than 43 prior offences involving

violence. It was held on appeal that the sentencing judge should have given

greater weight to the antecedents of the offender, beyond referring only to

s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999.19 It was held that it was

not a case where the offender lost control of himself because of a pre-existing

condition which might demonstrate a diminished capacity for self-control,

warranting a reduction in the need for general deterrence.20

It was held that if the mental illness or its symptoms were directly involved in

the commission of the offence, it would be a subjective circumstance

particular to the offender that would take him or her outside the general

population. This has the result that the principles of general and specific

deterrence have little or no application. 21 Alternatively, the nature of the

mental illness may be such as to reduce an offender's ability to control his or

her actions, which indirectly contributes to the commission of the offence.22

Note that special leave to appeal the decision of the Court of Criminal Appeal

in R v Bugmy was granted by the High Court of Australia on 10 May 2013.

                                                                                                               18 R v Bugmy [2012] NSWCCA 223 at [45] per Hoeben JA, with whom Johnson J and Schmidt J agreed 19 R v Bugmy [2012] NSWCCA 223 at [41] – [42] 20 R v Bugmy [2012] NSWCCA 223 at [43] -[44] 21 R v Bugmy [2012] NSWCCA 223 at [46] 22 R v Bugmy [2012] NSWCCA 223 at [46]

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In Watts v R [2010] NSWCCA 315 the offender was sentenced for malicious

damage to a Department of Housing residence that he lived in by setting it on

fire. It was found that he was motivated to become “eligible for emergency

housing assistance which would obtain for them a new house and get them

away from the filthy conditions they were living in”.23

There was evidence before the Court on sentence from two psychiatrists

diagnosing various mental health issues, although one psychiatrist said that

the offender did not suffer from a mental illness or disorder as defined in the

Mental Health Act 2007. It was held that the relevance of an offender’s mental

disorder transcends a matter of mitigation under section 21A(3)(j) of the

Crimes (Sentencing Procedure) Act 1999.24

It was held that the sentencing judge failed to give due weight to the

uncontested psychiatric opinions in evidence before the Court at first

instance.25 Whilst the applicant was not diagnosed with a mental illness or a

psychiatric disorder as far as those terms are relevant to the provisions of the

Mental Health Act 2007, one of the reports provided the opinion that the

applicant’s mental condition may have resulted in his having less capacity

than a normal person to reflect on his decisions. The Court found that this was

evidenced somewhat in the reasoning behind his motivation for setting fire to

the house.26 The Court found that whilst there were varying opinions of the

severity of the offender’s mental disorders, they were still relevant to an

assessment of the offender’s culpability for his actions and the degree to

which the sentence should reflect general deterrence.27

                                                                                                               23 Watts v R [2010] NSWCCA 315 at [9] 24 Watts v R [2010] NSWCCA 315 at [24] 25 Watts v R [2010] NSWCCA 315 at [25] 26 Watts v R [2010] NSWCCA 315 at [25] -[26] 27 Watts v R [2010] NSWCCA 315 at [27]

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4. SPECIFIC DETERRENCE

The requirement for specific deterrence on sentence may be moderated or

extinguished in circumstances where an offender suffers from a mental

illness. The importance of personal deterrence may be much reduced if the

mental illness affecting the decision-making capacity of the individual offender

is an ongoing condition.28

In R v Verdins [2007] VSCA 102 it was said at [32]:

…Whether specific deterrence should be moderated or eliminated as a

sentencing consideration likewise depends upon the nature and severity of

the symptoms of the condition as exhibited by the offender, and the effect of

the condition on the mental capacity of the offender, whether at the time of

the offending or at the date of the sentence or both.29

5. PROTECTION OF THE COMMUNITY

A reduction in the importance of general deterrence (in situations where there

is a causal connection between the mental disorder and the offence) may be

a double-edged sword, in that the importance of specific deterrence or the

need to protect the public may be increased.30

The level of danger that an offender presents to the community may become

a countervailing consideration and indicate a need for special deterrence.31

Protection of the community is a relevant sentencing consideration.32

In Veen v The Queen (No 2) (1988) 164 CLR 465 the majority said at 476:

                                                                                                               28 R v Windle [2012] NSWCCA 222 at [41] per Basten JA 29 Cited with approval in Leach v The Queen [2008] NSWCCA 73 at [10] 30 R v Engert (1996) 84 A Crim R 67 Gleeson CJ at 71 31 R v Israil [2002] NSWCCA 255 at [24] 32 Fardon v Attorney General for the State of Queensland (2004) 223 CLR 575 per Gleeson CJ at [20]

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… a mental abnormality which makes an offender a danger to society when

he is at large but which diminishes his moral culpability for a particular crime

is a factor which has two countervailing effects: one which tends towards a

longer custodial sentence, the other towards a shorter.

The countervailing effects were described in R v Engert (1995) 84 A Crim R

67 per Gleeson CJ at 68:

… in a particular case, a feature which lessens what might otherwise be the

importance of general deterrence, might, at the same time increase the

importance of deterrence of the offender.

The fact that the offender is considered to be a danger to society cannot have

the effect of leading to a heavier sentence than would otherwise be

appropriate (if the offender had not been suffering from a mental

abnormality).33 A sentence may not be extended merely by way of preventive

detention.34

The consideration of the protection of society at large is one that can be given

relatively little weight in the sentencing exercise.35 This is so even in the

situation where there is no evidence supporting a conclusion that there will be

an improvement of the offender’s condition in the immediate future.36

Punishment for the crime must not exceed a proper sentence, notwithstanding

any need to protect society. 37 It has been said that the appropriate

mechanism for protecting society cannot be found in the criminal law; the

need for protection arises from mental illness and it is through mental health

legislation that such protection as may be available must be sought.38

                                                                                                               33 Veen v The Queen (No 2) (1988) 164 CLR 465 at 477; R v Scognamiglio (1991) 56 A Crim R 81 at 85 34 Veen v The Queen (No 2) (1988) 164 CLR 465 at 473 35 R v Windle [2012] NSWCCA 222 at [57] per Basten JA 36 R v Windle [2012] NSWCCA 222 at [57] 37 R v Windle [2012] NSWCCA 222 at [57] 38 R v Windle [2012] NSWCCA 222 at [57]

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Criminal Antecedents

In Veen v R (No 2) [1988] 164 CLR 465 at 477 it was said by the High Court

(per Mason CJ, Brennan, Dawson and Toohey JJ):

It is legitimate to take account of the antecedent criminal history when it illuminates

the moral culpability of the offender in the instant case, or shows his dangerous

propensity or shows a need to impose condign punishment to deter the offender and

other offenders from committing further offences of a like kind.

Personality Disorders

R v Adams [2002] NSWCCA 448 was a case in which it was held that there

was a compelling need to have regard to the protection of the community.

There was before the Court that the offender suffered from a personality

disorder with borderline and antisocial features among other things. It was

said (at [54] per Smart AJ with whom Ipp JA and Bell J agreed):

The psychiatric evidence did not support substantial impairment of her

capacity to understand events or to judge whether her actions were right or

wrong. However, it did support that her capacity to control herself was

substantially impaired. This is a case where there is a compelling need to

have regard to the protection of the community. She also needs protecting

from herself. Of course, the sentence imposed must not, on these accounts,

be extended beyond what is otherwise correct.

Where a person has been diagnosed with an Antisocial Personality Disorder

there may be a particular need to give consideration to the protection of the

public.39

(See also R v Windle [2012] NSWCCA 222 on borderline personality disorder

and antisocial personality disorder.)

                                                                                                               39 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at 177 per McClellan CJ at CL citing R v Lawrence (2005) NSWCCA 91 at [24] per Spigelman CJ

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Fact finding in Respect of the Likelihood of Reoffending

In Fardon v Attorney General for the State of Queensland (2004) 223 CLR

575 Gleeson CJ said at [12]:

No doubt, predictions of future danger may be unreliable, but, as the case of

Veen shows, they may also be right. Common law sentencing principles …

permit or require such predictions at the time of sentencing, which will often

be many years before possible release.

Findings as to future dangerousness and likelihood of reoffending do not need

to be established beyond reasonable doubt.40 It has been held to be sufficient,

for the purpose of considering the protection of the community, if a risk of re-

offending is established by the Crown.41

Retribution

It was said in R v Windle [2012] NSWCCA 222 that a proper purpose of the

criminal law is not to give effect to the irrational prejudices of ill-informed

public opinion in terms of the community’s expectation that an offender will

suffer punishment and particular offences will merit severe punishment. The

urge for retribution should be treated as diminished in the case of the mentally

ill.42

6. WEIGHT OF CUSTODIAL SENTENCE Courts have held that a custodial sentence may weigh more heavily on a

mentally ill person.43 It may be helpful if advancing this point to be able to

provide some kind of evidence that is indicative of the particular difficulties                                                                                                                40 R v SLD (2003) 58 NSWLR 589 at [40] 41 R v Harrison (1997) 93 A Crim R 314 at 319 42 R v Windle [2012] NSWCCA 222 at [42] per Basten JA 43 R v Hemsley [2004] NSWCCA 228 at [35]; R v Israil [2002] NSWCCA 255 at [26]; R v Jiminez [1999] NSWCCA at [25]; R v Tsiaras [1996] 1 VR 398 at [400]

  17

that the offender will face in custody as a result of their mental health

problems.

In a recent decision of R v Wright [2013] NSWCCA 82, it was noted that there

was an absence of evidence at first instance as to whether or not the offender

would be able to obtain treatment in custody for his mental illness, or as to

whether or not his mental illness would place him in protected or segregated

custody. The Court was not persuaded in those circumstances that

imprisonment would be more onerous for the offender because of his mental

illness, despite the fact that the Court at first instance appeared to have

overlooked the consideration of the onerousness of the offender’s time in

custody.44

7. DELAY IN PLEA OF GUILTY

In Hatfield v R [2011] NSWCCA 286 pleas of guilty were entered five months

after the offender had been found fit to stand trial. The finding of fitness

occurred two years after his arrest. The sentencing judge allowed a discount

of 15 percent for the pleas of guilty, finding that they had not been made at

the first reasonable opportunity. It was held that a discount of 20 percent

should have been allowed because it would not have been reasonable for the

offender to have entered guilty pleas until after he had been found fit to stand

trial.45 The delay following the finding of fitness was found to have been

properly taken into account in the determining of the discount to be allowed

for the pleas entered.46 It follows that had there not been a further delay, the

offender would have been entitled to a full 25 percent discount if the plea had

been entered at the first opportunity following the finding of fitness.47

In Hawkins v R [2011] NSWCCA 153 the offender had a long history of mental                                                                                                                44 R v Wright [2013] NSWCCA 82 at [50] – [54] per Price J with whom Macfarlan JA and Hulme AJ agreed 45 Hatfield v R [2011] NSWCCA 286 at [52]-[54] per Hall J, with whom the other members of the Court agreed (allowing the appeal) 46 Hatfield v R [2011] NSWCCA 286 at [52] per Hall J 47 Hatfield v R [2011] NSWCCA 286 at [54] per Hall J

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illness. He entered pleas of guilty to two offences in the Local Court. When

the matter went to the District Court, the Crown presented an indictment

containing three offences – the two to which the plea had been entered in the

Local Court, and a third charge. Ultimately the Crown did not proceed on the

third charge and a plea was accepted to the first two charges. There were

delays in the offender entering pleas of guilty in both the Local and District

Court due to various inquiries being made regarding his mental health, one of

which was a fitness hearing. The sentencing judge gave the offender a

discount of 20 percent for the plea. On appeal, the Court held that the

discount should have been 25 percent.48 It was held that the utilitarian value

of those pleas was not reduced by the fact that they were the subject of

negotiation whereby other charges were not pursued.49 (See also R v

Sharrouf [2009] NSWSC 1002 at [67] and R v Zeilaa [2009] NSWSC 532

which concerned similar situations and were decisions at first instance where

a discount of 25 percent was imposed.50)

8. EACH CASE SHOULD BE ASSESSED ON ITS FACTS In R v Engert (1995) 84 A Crim R 67, it was said that a “sensitive discretionary

decision” is called for when sentencing an offender who suffers from a mental

disorder.51 This means that the particular facts and circumstances of the case

should be applied to the often overlapping and disparate purposes of criminal

punishment as detailed in Veen v The Queen (No 2) (1988) 164 CLR 465

at 488. It was said in R v Engert per Gleeson CJ that it is erroneous in

principle to approach sentencing:

… as though automatic consequences follow from the presence or absence

of particular factual circumstances. In every case, what is called for is the

making of a discretionary decision in the light of the circumstances of the

individual case, and in the light of the purposes to be served by the

                                                                                                               48 Hawkins v R [2011] NSWCCA 153 at [25]- [26] per Hidden J 49 Hawkins v R [2011] NSWCCA 153 at at [26] per Hidden J 50 Hawkins v R [2011] NSWCCA 153 at [25]- [26] per Hidden J 51 R v Engert (1995) 84 A Crim R 67 at 67 per Gleeson CJ

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sentencing exercise.52

9. PRACTICAL CONSIDERATIONS: MAKING CONCESSIONS AND PROVIDING EVIDENCE In BT v R [2012] NSWCCA 128 counsel on appeal made submissions that

were different from those made on sentence, in support of a contention

that the sentence was manifestly excessive. The Court noted that

concerns had been expressed over that approach in Zreika v R [2012]

NSWCCA 44 (Zreika) at [79]–[81].53 An appeal is not an opportunity to

recast the case presented to the sentencing judge. Nonetheless the

submissions were considered to determine whether there had been an

error demonstrated. Counsel on sentence made the concession that there

was no evidence of any causal connection between the offender’s mental

health problems and the offence.54 The concession was consistent with

what the offender told Justice Health, in that he denied that any of his

psychotic symptoms were particularly related to the offence.55 The

sentencing judge also considered contradictory statements in another

Justice Health report.56 The offender did not give evidence at the sentence

hearing. In light of the concession made by counsel and the lack of

evidence given by the offender, the Court held that there was no error by

the sentencing judge in respect to taking into account the offender’s

mental illness.57

10. PREVIOUS VERDICTS OF NOT GUILTY BY REASON OF MENTAL ILLNESS ON CRIMINAL HISTORY

In Heatley v R [2008] NSWCCA 226 the offender was being sentenced for

                                                                                                               52 R v Engert (1995) 84 A Crim R 67 at [68]  53 BT v R [2012] NSWCCA 128 at [20] per Adamson J 54 BT v R [2012] NSWCCA 128 at [22] per Adamson J 55 BT v R [2012] NSWCCA 128 at [23] per Adamson J 56 BT v R [2012] NSWCCA 128 at [26] per Adamson J 57 BT v R [2012] NSWCCA 128 at [27] per Adamson J

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offences of armed robbery. He had previously been found not guilty by reason

of mental illness of two earlier offences of armed robbery. The sentencing

judge, whilst recognising that the findings were not strictly part of the

offender’s criminal record, had regard to those matters on sentence and said

they had “limited relevance”.58 The sentencing judge found that the armed

robbery offence was not an uncharacteristic aberration and showed an

attitude of disobedience to the law.59 An act that is committed by a person

whilst lacking the mental capacity to commit a crime should not be considered

part of his criminal history or reflective of his or her attitude toward obedience

to the law. Only offences of which a person has been convicted are relevant

to a later sentencing task.60 The Court likened this to a situation where an

offender has been given a section 10 and a conviction not entered pursuant to

the Crimes (Sentencing Procedure) Act 1999.61

11. DISMISSING A CHARGE BEFORE A FITNESS HEARING In Newman v R [2007] NSWCCA 103, accused had been in custody for 17

months pending a trial. The accused’s fitness became an issue and a

direction was given that a fitness hearing be held pursuant to section 10 of the

Mental Health (Criminal Procedure) Act 1990 (now found under section 10 of

the Mental Health (Forensic Provisions) Act 1990.) An application was made

before the fitness hearing commenced for the charges to be dismissed

pursuant to section 10(4) Mental Health (Criminal Procedure) Act 1990. The

wording of section 10(4) as it presently is in the Mental Health (Forensic

Provisions) Act 1990 is the same. It reads:

If, in respect of a person charged with an offence, the Court is of the opinion

that it is inappropriate, having regard to the trivial nature of the charge or

offence, the nature of the person’s disability or any other matter which the

                                                                                                               58 Heatley v R [2008] NSWCCA 226 at [41] per McClellan CJ at CL with whom the other members of the Court agreed 59 Heatley v R [2008] NSWCCA 226 at [42] per McClellan CJ at CL 60 Heatley v R [2008] NSWCCA 226 at [43] per McClellan CJ at CL 61 Heatley v R [2008] NSWCCA 226 at [43] per McClellan CJ at CL referring to the decision in R v Price [2005] NSWCCA 285

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Court thinks proper to consider, to inflict any punishment, the Court may

determine not to conduct an inquiry and may dismiss the charge and order

that the person be released.

It was held on appeal that an application under section 10(4) may succeed

where the Court would not impose any punishment, including the element of

punishment implicit in a conviction. It was held that the section is analogous to

the provision now found in section 10 of the Crimes (Sentencing Procedure)

Act 1999. 62 The ultimate power of the Court is to dismiss a charge that has

been, or may be, proven.63 The general approach adopted to section 10

Crimes (Sentencing Procedure) Act 1999 (and its predecessor) is the correct

approach to adopt for the purposes of section 10(4).64 The task is to be

conducted in anticipation of a finding of guilt, by either of the courses that can

flow from a fitness hearing (being a trial or a special hearing).65 Section 10(4)

requires the Court to approach an application on the assumption of a finding

of guilt, including a finding of qualified guilt (as a result of a special hearing),

and then to apply a similar range of considerations as now arise under

section 10 of the Crimes (Sentencing Procedure) Act 1999.66 Where the Court

would not impose any punishment, including the element of punishment

implicit in a conviction, then the proceedings should be dismissed at the

threshold of the fitness hearing without the need for one.67

12. LIMITING TERMS

When an accused is found to be unfit to stand trial, a special hearing may be

held. ‘Limiting terms’ are the sentences imposed following a special hearing

where it is found on the limited evidence available that an accused person

committed the offence charged or some other offence available as an

                                                                                                               62 Newman v R [2007] NSWCCA 103 at [42] per Spigelman CJ (with whom Bell and Price JJ agreed) 63 Newman v R [2007] NSWCCA 103 at [44] 64 Newman v R [2007] NSWCCA 103 at [45] 65 Newman v R [2007] NSWCCA 103 at [45] 66 Newman v R [2007] NSWCCA 103 at [46] 67 Newman v R [2007] NSWCCA 103 at [46]

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alternative.

The Court must indicate whether, had the special hearing been a normal trial,

it would have imposed a sentence of imprisonment.68 In situations where the

Court would have imposed a sentence of imprisonment, the Court must

nominate a term (called a ‘limiting term’) in respect of the offence. The limiting

term is the best estimate of the sentence the Court would have considered

appropriate if the special hearing had been a normal trial for that offence and

the person had been found guilty of that offence.69 A total term only must be

nominated, there is no scope for minimum and additional term.70

If the Court indicates that it would not have imposed a sentence of

imprisonment,71 the Court may impose any other penalty or make any other

order it might have made on conviction of the person for the relevant offence

in a normal trial.72 Orders made pursuant to subsection (2) are subject to

appeal as such orders would be in normal circumstances.73

In nominating a limiting term or imposing any other penalty or order, the Court

may take into account (and backsdate accordingly) any periods of custody or

detention referable to the offence before, during or after the special hearing.74

Limiting terms can commence at a later time, so they are served

consecutively (or partly consecutively or concurrently) with another limiting

term or sentence of imprisonment.75 Otherwise, the limiting term is to take

effect from the time when it is nominated.76

If a limiting term is to be nominated, the Court must refer the person to the                                                                                                                68 Section 23(1)(a), Mental Health (Forensic Provisions) Act 1990 69 Section 23(1)(b), Mental Health (Forensic Provisions) Act 1990 70 R v Mitchell (1999) 108 A Crim R 85at [21]; R v Mailes (2004) 62 NSWLR 181at [22] and [29]; R v AN [2005] NSWCCA 239at [13]. 71 Section 23(7), Mental Health (Forensic Provisions) Act 1990: if the Court indicates that it would not have imposed a sentence of imprisonment, it must notify the Tribunal that a limiting term is not to be nominated in respect of the person. 72 Section 23(2), Mental Health (Forensic Provisions) Act 1990 73 Section 23(3), Mental Health (Forensic Provisions) Act 1990 74 Section 23(4) and (5)(a), Mental Health (Forensic Provisions) Act 1990 75 Section 23(5)(b), Mental Health (Forensic Provisions) Act 1990. Section 23(6) lists a number of factors that the Court is to take into account when making a direction under subsection (5) (b). 76 Section 23(5), Mental Health (Forensic Provisions) Act 1990

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Tribunal, and may make such order with respect to the custody of the person

as the Court considers appropriate (for instance an appropriate interim

detention order). 77 The Tribunal must determine (and notify the Court)

whether or not the person is suffering from a mental illness or a mental

condition for which treatment is available in a mental health facility. If the

person is not in a mental health facility, whether or not the person objects to

being detained in a mental health facility.78 After being notified of the

Tribunal’s determinations, the Court may make a final detention order.79

There is no power for the Court to order that part of the limiting term be

served in detention and part not.80 A person who is serving a limited term is a

‘forensic patient’.81

In respect of the length of limiting terms, the offender’s mental condition is

relevant in similar ways as it is in respect of general sentencing. For instance

it can be of relevance in respect of the offender’s culpability, likelihood of

reoffending and the level of danger that a mentally ill offender presents to the

community.82

Imposing a Limiting Term After a Breach of Bond

In Smith v R [2007] NSWCCA 39 a special hearing took place (under the

Mental Health (Criminal Procedure) Act 1900) and the accused was placed on

a section 9 good behavior bond. He later breached the bond and was called

up on the breach. A limiting term of three years was imposed by a different

judge. The ability of the Court to impose a limiting term at that point was in

issue on appeal.

                                                                                                               77 Section 24(1)(a) and (b), Mental Health (Forensic Provisions) Act 1990 and Mailes v DPP [2006] NSWSC 267 at [29] 78 Section 24(2) and (3), Mental Health (Forensic Provisions) Act 1990 79 Section 27, Mental Health (Forensic Provisions) Act 1990; R v AN (No 2) at [48]; Mailes v DPP at [40]. 80 R v AN (No 2) (2006) 66 NSWLR 523 at [83]. 81 Section 42 Mental Health (Forensic Provisions) Act 1990 82 Courtney v R (2007) 172 A Crim R 371 at [26], [59] and [83]; Agha v R [2008] NSWCCA 153 at [24].

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It was held that there is power to impose a limiting term after revocation of a

section 9 bond imposed following a special hearing. It was held that the

legislature, in permitting a section 9 bond to be imposed must also be taken to

have made available the consequent power to revoke the bond (available

under the Crimes (Sentencing Procedure) Act 1999). If the power to revoke

the bond is then exercised, it was held that the Court may proceed, not to ‘re-

sentence’ but to continue to deal with the person under the Mental Health

(Criminal Procedure) Act 1990 (NSW) (as it then was).83

                                                                                                               83 Smith v R [2007] NSWCCA 39 at [57] per Hall J, with whom Sully and Howie JJ agreed